Eastern Wisconsin Railway & Light Co. v. Hackett

Tbe following opinion was filed March 10, 1908: TiMxru, J. Tbe pleadings are unnecessarily voluminous, covering 835 printed pages. Proper practice requires that when suits are consolidated tbe order of consolidation should require tbe title of the cause and tbe pleadings to be amended to conform to the order of consolidation. Tbe practice here pursued of retaining all tbe original and amended pleadings — 473 — in. each action and presenting them to the court as the pleadings in the consolidated action cannot be approved. The ■argument took a very wide range, involving the claims on the part of the appellant: (1) that the city had no jurisdiction ■or authority to pass the resolutions complained of, because such resolutions impaired the obligations of existing contracts ; (2) that the acts of the city were in bad faith, ostensibly for the public welfare but really in the interest of the Eastern Wisconsin Railway & Light Company in order to get $35,000 agreed to be paid to the city by that company for its franchise or permit to use the streets; (3) that the resolutions as regulations were unreasonable under the circumstances and hence invalid. These claims are denied by the respondents with' great learning and ability of argument. It is pointed out by respondents that sec. 13 of the franchise ordinance of the appellant expressly reserved to the -common council of the city of Oslikosh the right at all times to control the improvement and repair of its streets and every part thereof to the same extent as if no grant of the right to use the same had been given. This ordinance further declared that all switches and turnouts should be laid under the direction of the board of public works of the city, and the city charter vests in the city the authority to establish and alter the grade of streets and to regulate the manner of using the streets and pavements in the city, and to regulate the running of street railway cars, laying down tracks for the same, the transportation of passengers thereon, and the kind of rails to be used. We are also referred to sec. 1862, Stats. (1898), which declares that a street railway shall be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance, from time to time, prescribe. Considering the foregoing provisions of the' charter, statute, and ordinance, and the cases of Marshfield v. Wis. Tel. Co. 102 Wis. 604, 78 N. W. 735; Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118; State — 474 — ex rel. Wis. Tel. Co. v. Janesville St. R. Co. 87 Wis. 72, 57 N. W. 970; and Baltimore v. Baltimore T. & G. Co. 166 U. S. 673, 17 Sup. Ct. 696, we are convinced that tbe acts and' resolutions in question of tbe city of Oshlcosh were not ultra vires; tbat is to say, not beyond tbe power of tbe city reasonably exercised. We agree witb Judge Quaexes tbat there is no federal question involved. Tbe respondents further contend tbat this is a controversy wholly between tbe city of Oshlcosh and tbe Winnebago' Traction Company, and tbat tbe Eastern Wisconsin Railway & Light Gompany is only incidentally a party thereunto', and tbat tbe controversy must be determined as if tbe city of Oshlcosh and tbe Winnebago Traction Company were tbe sole contending parties, and, further, tbat tbe city’s acts and resolutions in question were not only within its power, but were a reasonable exercise of its police power of regulation, solely for tbe public interest and in good faith, and tbe conclusion of tbe trial court sustains them in this latter claim. We have given these claims and.all other claims made by either party careful attention, and we are convinced tbat, notwithstanding tbe extraordinary volume of printing presented, the relevant and controlling facts in this litigation are few, simple, and practically uncontroverted. Where there is no substantial- dispute upon the facts tbe question before this court is whether upon such undisputed facts tbe judgment of tbe court below was right. Getty v. Schantz, 101 Wis. 229, 77 N. W. 191. Besides, tbe aj)pel-laut excepted to tbe sixth conclusion of law, “because on tbe undisputed evidence herein tbe acts of tbe city of Oshlcosh in attempting to deprive tbe defendant, tbe Winnebago Traction Company, of its rights and property in and to' said bridge, were unreasonable, capricious, partial, were not in tbe interest of tbe public, but were and intended to be for tbe sole benefit of tbe Eastern Wisconsin Railway & Light Company.” The latter is an interurban railway company. — 475 — The ordinance under which it claims its right in the case at bar prohibits the doing of a street railway business by it. Sec. 1862, Stats. (1898), relates to street railways. An ordinance granting an intermitan railway the right to construct its track and operate in public streets is quite a different thing from an ordinance under sec. 1862, Stats. (1898), supra. "With reference to an intermitan railway the ordinance of the common council merely authorizes the corporation to use the streets, with the consent of the city as against the rights of the public, hut not.as against private owners, leaving such private owners in full possession of their rights to stop the construction, insist on compensation, or give their consent, as they choose. Lange v. La C. & E. R. Co. 118 Wis. 558, 95 N. W. 952. Let us briefly examine the situation as it existed when the city took the first action complained of on the 28th day of ETovember, 1905. At that time the Winnebago Traction Company had succeeded to the rights of the Citizens’ Traetion”Oompany under the franchise of the latter, which had succeeded to the property of the Oshkosh Street Railway Company by purchase. Instead of taking an assignment of the franchise rights of the Oshkosh Street Railway Company, the Citizens’ Traction Company, after its purchase, applied to the common council for a grant of the uáe of certain streets, including Main street, South Main street, and Main-street bridge. The Oshkosh Street Railway had then, and for a long time prior thereunto, its tracks and turnouts upon this street and upon this bridge. This grant to the Citizens’ Traction Company was given by ordinance of ETovember 4, 1897, and specifically authorized necessary switches and turnouts to be laid under the direction of the board of public works. Existing conditions and existing relations cannot be ignored in its interpretation. It also specifically authorized a single or double track along Main street, including the crossing of Main-street bridge. With — 476 — tbe consent and under tbe permission of tbe city authorities tbe Winnebago Traction Company and its predecessor, tbe Citizens’ Traction Company, maintained over and across this bridge a double track, in form a turnout or passing ■ track, connected with tbeix single main track north and south of tbe bridge upon or near tbe approaches to tbe bridge. These tracks upon and across the bridge were tbe property of the Winnebago Traction Company and were lawfully in place or lawfully entitled to be in place. At tbe time in question tbe ordinance of June 30, 1897, under which tbe Winnebago Traction Company held this property, contained tbe following: “Sec. 10. Tbe city of Oshkosh, under tbe proper exercise of its police power, shall have tbe right to regulate tbe operation of said railway as tbe good order of said city and the safety and comfort of tbe citizens demand; tbe said city shall also protect . . . tbe Citizens’ Traction Company in the enjoyment óf tbe rights hereby granted against all invasion or interruption by tbe passage of proper ordinances for that purpose.” At tbe time in question tbe Winnebago Traction Company bad a traffic agreement with tbe predecessor in interest of tbe Eastern- Wisconsin Railway & Light Gompamy to which tbe latter succeeded whereby tbe Winnebago Traction Company, for a valuable consideration to be paid by tbe Eastern Wisconsin Railway & Light Company, bad agreed to transport tbe cars of tbe latter along tbe tracks of tbe former over tbe bridge in question, and this agreement was to continue in force during tbe whole period of tbe franchise of tbe Winnebago Traction Company. At tbe time in question tbe authority which tbe Eastern Wisconsin Railway & Light Company bad by ordinance of tbe city of Oshkosh permitting it to run on Main street in said city required that corporation to pay $35,000 in annual instalments of $1,000 each, and was subject to this proviso in favor of tbe Winnebago Traction Company, namely: — 477 — “Provided, however, that no more than two tracks, including those heretofore laid or existing, or which any other railway company has a right to lay under existing franchise or franchises, shall be laid along said streets, bnt in lien of the laying of such tracks where a single or double track has been heretofore laid or shall hereafter be lawfully laid by another company on any part of said street, the said Eastern Wisconsin Railway £ Light Company is hereby authorized to carry and operate its interurban cars over and along such tracks of any other company by purchase, lease, or other contract arrangement with such company or any other company now owning or using an existing track or tracks along any of said streets.” At the time in question, in consequence of the city of Osh-Icosh having about December, 1904, begun the construction of a new bridge on Main street across Eox river, and manifestly in recognition of the existing rights of the Winnebago Traction Company on said bridge, there was in existence a contract in writing between the city of OshTcosh and the Winnebago Traction Company, duly executed under the seal of said city, by the terms of which the city agreed, in accordance with plans and specifications then on file in the office of the city clerk, to lay and fasten upon said new bridge the rails of the Winnebago Traction Company, and the Winnebago Traction Company agreed to furnish all rails for the laying of its double track across said bridge and to pay its proportionate share of the cost of the bridge planking and labor to lay the said planking, and laying and fastening said rails upon said bridge, together with ten per cent, additional as a just and reasonable profit to the city. This contract had been executed at least to the extent of furnishing and fastening rails and locating the tracks. At the time in question the Eastern Wisconsin Railway & Light Company had by ch. 266, Laws of 1905 (sec. 1863a, Stats.: Supp. 1906), the power and authority, when reasonably necessary, to take and acquire by condemnation or otherwise the right to run its ears over any bridge owned by any city of the second, third, — 478 — and fourth classes . . . and the approaches thereto on the rails of any other street or electric railway which it might meet, join, intersect, or cross. At the time in question there existed a decision of this court, announced fourteen days prior to the adoption of the first resolution in question, holding that the Winnebago Traction Company by building a single track with turnouts or jmssing tracks had elected under its franchise ordinance to build a single-track railway, and had no right to convert its line thereafter, either wholly or partially, into a double-track road. Eastern Wis. R. & L. Co. v. Winnebago T. Co. 126 Wis. 179, 105 N. W. 571. At the time in question the Winnebago Traction Company was claiming more than it was entitled to, in that it was claiming the right to double track all of Main street as well as the right to maintain its turnout or passing track on Main-street bridge under the ordinance and contracts above mentioned. At the time in question the Winnebago Traction Company had not yet restored the cross-over or connecting-tracks between its main track and the passing track on the new bridge. At the time in question the Eastern Wisconsin Bail-way & Light Company had a single track constructed in South Main street up' as far as the approach to the bridge in question and parallel with the track of the Winnebago Traction Company, and was claiming the right to run over the bridge, and disputes existed and litigation was pending between the two corporations. We express no opinion with reference to the legality or propriety of the agreement to pay the city $35,000 contained in the ordinance of November 10, 1903, because that question is not necessarily before the court. We may add here that we do not agree with the construction given by the learned circuit court in its twenty-fourth finding of fact to the proviso contained in sec. 2 of the ordinance of November 10, 1903, under which the Eastern Wisconsin Railway & Light Company claims its right to occupy — 479 — the streets. It is there thought that this proviso was wholly in consequence of the claims of the Winnebago Traction Company, and that it granted to the other contending company the right to lay its tracks, provided the Traction Company had not the prior right to lay two tracks in said street. The proviso does not read that way. The significant words ■of the proviso are: “In lieu of the laying of such tracks, wnere a single or ■double track has been heretofore laid or shall hereafter be lawfully laid by another company on any part of said street, the said Eastern Wisconsin Railway '<& Light Company is hereby authorized to' carry and operate its interurban cars ■over and along such tracks of any other company,” subject to the existing rights of such other company. Tracks then existing, whether single or double tracks, are recognized as lawfully in the streets. Tracks thereafter laid must be lawfully laid. A turnout or passing track then existing is as much within this proviso as any other track, because whether we consider that a single-track pr a double-track road it had been theretofore laid. While these conditions existed the common council of the ■city of Oshkosh on November 28, 1905, with a superabundance of preamble and protest which suggests the resolution ■of the play queen in Ilamlet or the sixth rule in Twiners Case, resolved that no diagonal switch or connecting trade running at an angle or otherwise be permitted to be laid or placed by either the Eastern Wisconsin Railway'& Light Company or the Winnebago Traction Company upon the new Main-street bridge or upon the approaches thereto until plans' •and specifications therefor were adopted. The Eastern Wisconsin Railway & Light Company was then making no claim to lay diagonal or connecting tracks on or near the bridge. The effect of this resolution was to prevent the Winnebago Traction Company from restoring the connections connecting its main line with the passing track on the bridge north — 480 — or south of the bridge substantially as sucb connections existed prior to the construction of the new bridge and which. Were displaced temporarily in consequence of such construction. This resolution of November 28, 1905, purported to-revoke any permission or consent whether given or claimed to have been given by ordinance, resolution, motion adopted, or agreement with either of said railway companies which in> any wise conflicted with this order. This, of course, was nominally directed against both companies, but really aimed at the Winnebago Traction Company. The resolution further directed the city engineer to prepare plans and specifications for the location of tracks in Main street, and until said plans and specifications were made and filed neither the-Eastern Wisconsin Railway & Light Company nor the Winnebago Traction Company should be permitted to do any work in Main street or to put in place or move the tracks or-any of them. The city attorney was also directed to compel the location of the tracks in accordance with the said plan of' the city engineer. The city engineer- in due time produced his plan, which was adopted and ratified by the common council and filed with the city clerk, whereupon on December 19, 1905, by resolution No. 4,872, the common council, after a preamble reciting among other things that both the-Eastern Wisconsin Railway & Light Company and the Winnebago Traction Company claimed the right to construct doiible tracks, switches, or turnouts upon Main-street bridge and its approaches, and that suits were pending and others might be commenced in which the city of OshTcosh is or-might be made a party, and other recitals, instructed the city attorney to appear and represent the city in all litigation and to insist that all street railway tracks be constructed in said streets according to the resolution of the common council of' November 28, 1905, and according to the plans and specifications prepared thereunder by the city engineer. This resolution contained some argumentative matter, and also determined that no switch or turnout should be constructed by — 481 — either the Winnebago Traction Company or the Eastern Wisconsin Railway '& Light Convpany npon Main-street bridge, because the same would be a continuing menace to public safety and convenience and dangerous to the people lawfully traveling upon said street with teams and vehicles. The resolution then required notice to the Winnebago Traction Company to move its tracks in Main street north of the bridge westwardly of the center of the street. In case it failed so to do, required the board of public works to move said tracks; and required the Eastern Wisconsin Railway <& Light Company to file with the city clerk an agreement upon its part to reimburse the city of Oshhosh and hold it harmless from all cost and expense of the relocation of said track. The Winnebago Traction Company is a street railway. Sec. 1862, Stats. (1898), providés that such railways shall be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance from time to time prescribe. Passing over without comment the fact that the regulations here attempted were not by ordinance, as required by statute, but by resolution, we quote from Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, at page 351 (85 N. W. 1036, 1042) : ■ “It is elementary that the power of the city council to enact ordinances is not unlimited. It may go, within the field delegated to it by the state legislature, to the boundaries of reason. Within such field its discretionary power is 'supreme, but it cannot legitimately go beyond. If it does, in so far its enactments are void. Whether in any given case where the facts are undisputed a city council has exceeded its power by the enactment of an unreasonable ordinance is purely a judicial question, to be considered substantially the same as that of whether the legislature has exceeded its constitutional authority, reasonable doubts being resolved in favor of municipal power.” Municipal ordinances must not be unreasonably prejudicial to private rights and interests. , Hayes v. Appleton, 24 — 482 — Wis. 542. In Le Feber v. West Allis, 119 Wis. 608, 97 N. W. 203, an ordinance for municipal lighting granted under a statutory delegation of power much broader than that given by sec. 1862, supra, was held void because unreasonable, and a large number of authorities are there cited. So ordinances must be impartial, fair, and general. 1 Dillon, Mun. Corp. (4th ed.) § 322. They must not be oppressive in their character. Id. § 321. And they must be reasonable and lawful. Id. §§ 319, 320. The question in this case, therefore, is, assuming that the city of Oshkosh had power and authority to enact an ordinance in the interests of the public depriving the Winnebago Traction Company of its passing tract upon Main-street bridge, or, what is the same thing, prohibiting the connection of said passing track at its ends with the main track, was it a reasonable exercise of such power to enact such an ordinance at the time in question and under the circumstances then existing? It is argued that the common council has decided and the circuit court has found that any switch or turnout upon Main-street bridge with its diagonals or cross-over tracks on the approaches thereto is undesirable, a hindrance to other modes of travel in the street and over the bridge, and unsafe and dangerous to those using the same with teams and vehicles. It is true that such findings were made. But such findings, still leave the question open whether or not a reasonable exercise of the power of regulation should not have provided for the diagonals or cross-over tracks at a point in Main street farther north and south of the approaches to the bridge instead of prohibiting them altogether. Only two tracks are permitted upon the new bridge. Two tracks existed upon the old bridge. The new bridge is about ten feet wider than the old bridge. There is a clear space of eight feet and eleven inches from rail to rail between the tracks on the new bridge. Now, consider the result of the acts in question of the common council. One — 483 — result was to abrogate tbe contract made by tbe city witb tbe Traction Company one year before tbe passage of these resolutions and to confiscate whatever property bad been contributed in pursuance of said contract or whatever payments, if any, bad been made therefor by the Traction Company. Another result was to deprive tbe Traction Company of its rights under tbe traffic contract witb tbe Eastern Wisconsin Railway & Light Company, such as they were. It is no answer to this to say that this traffic contract was of 'doubtful validity. Roth tbe city and tbe Eastern Wisconsin Railway & Light Company bad by ordinance of November 10, 1903, recognized tbe right of tbe Winnebago Traction Company to compensation. It is not within tbe authority of common councils to pronounce contracts void as against public policy. Under tbe wording of tbe proviso contained in sec. 2 of tbe ordinance of November 10, 1903, this bridge was a part of Main street; not for all purposes, but within tbe meaning of this proviso interpreting tbe same according to tbe existing situation and tbe relations of tbe parties affected thereby. Another result of tbe action of tbe city was to deprive tbe Winnebago Traction Company of its right to compensation in any condemnation proceeding instituted by tbe Eastern Wisconsin Railway & Light Company for tbe purpose of acquiring tbe right to cross this bridge. Tbe decision of this court in Eastern Wis. R. & L. Co. v. Winnebago T. Co. 126 Wis. 179, 105 N. W. 571, is far from affirming that tbe latter company has no right or property in its turnouts, switching and passing tracks. The decision in In re Eastern Wis. R. & L. Co. 127 Wis. 641, 107 N. W. 496, is far from affirming that tbe traffic contract in question was wholly void, or that rights or ■claims of right under it could be utterly disregarded by tbe common council. That case merely bolds that such traffic contract is no bar to tbe exercise of tbe power of eminent domain by tbe Eastern Wisconsin Railway & Light Company. — 484 — The city was interested to the extent of getting $35,000 from the Eastern Wisconsin Railway & Light Company and therefore not wholly impartial. The resolutions in question, although ostensibly aimed at both companies, were wholly in the interest of the Eastern Wisconsin Railway & Light Company as between the two- corporations. There was no- new or sudden increase of the population or traffic of the city of Oshkosh; no emergency calling for immediate action on the part of the city officials. The only condition shown to have been acute or pressing was the effort of the Eastern Wisconsin Railiuay '& Light Company to cross this bridge without compensation to the Winnebago Traction Company in disg-regará of the traffic agreement and in disregard of the provisions of its permit from the city, which required it to make terms with the Winnebago Traction Company, as we interpret that ordinance. This condition was created by the acts of the public officers of the city of Oshkosh and they should not be allowed to stand upon an emergency of their own creation. This effort on the part of the Eastern Wisconsin Railway & Light Company was also in disregard of the statute permitting it to obtain the right to run on the tracks of the other company across the bridge by condemnation. At the same time, as we have seen, the resolution of the city council would be quite disastrous to the Winnebago Traction Company, not only by depriving it of this passing track or turnout, but also by depriving it of the opportunity of ascertaining and maintaining such rights as it possessed against the Eastern Wisconsin Railway & Light Company. It is no answer to this to say that the city had power, by the enactment of reasonable regulations, to compel the removal of this turnout or passing track from the bridge whenever the public interest demanded such action. Conceding the power, still it must be exercised reasonably and impartially, and an unjust or oppressive or partial exercise of such power cannot be justified merely upon the plea that the city determined — 485 — that the time had arrived when the pnblie interests demanded such action. Such determination is not conclusive because it goes to the reasonableness of the regulation in question. Such a regulation might be reasonable at one time or under one set of circumstances, and unreasonable at a time or under •circumstances when it made havoc, of private interests. It is a somewhat prevalent error that property devoted to public rise and subject to public regulation is thereby quite out of law, or, as Blackstone says, caput lupinum-. The use of such property is subject to regulation and subject to interference by the public authorities with the dominion of the owner to a far greater degree than private property because of its quasi-public character and because of the tendency to abuse or extortion in its use and management. Rut subject to this limitation the owner of such property has the same rights in his property as any other owner. He may insist upon his own price therefor, except as against the power of eminent domain. He may insist upon all the advantages of location and all the advantages of existing contracts so long as he does not run counter to reasonable and lawful regulations concerning the use of such property. So the Winnebago Traction Company had, as. against the Eastern Wisconsin Railway '& Light Company, the right to exact such compensation as it could obtain from the latter for using the east track in question in crossing Main-street bridge. And the latter company has the right to refuse it if it considers the same excessive, and by the law now existing -to resort to condemnation proceedings. But the city had no right to intervene in such an exigency and in effect annul and take away such rights of the Traction Company, even if the public interest did require that the passing track or turnout be removed from the bridge, because such exercise of its police power would be unreasonable under the circumstances above shown. Whether or not it was intended by the city to aid the Eastern Wisconsin Railway & Light Company at the ex — 486 — pense of the Traction Company and so earn the $35,000 will make no difference if the natural and necessary result of the acts of the city was to aid the one company at the expense of the other. The city must have intended this natural and necessary result of its acts. A reasonable exercise of the power to regulate on the part of the city would at least require its postponement until after the Eastern Wisconsin Railway & Light Company had acquired by negotiation or by condemnation the right to use this track on the bridge. We do not feel called upon to impugn the good faith of the city officials, but we do challenge their judgment of what is, under the circumstances, a reasonable exercise of the power of regulation, and hold that the attempted regulations were void as partial and unreasonable. It follows that the judgment of the circuit court must be reversed, the complaint of the city of Oshlcosh and that of the Eastern Wisconsin Railway <& Light Company should be dismissed for want of equity, and that the Winnebago Traction Company should have judgment declaring the resolution of the common council of November 28, 1905, No. 4,861, and that of December 19, 1905, No. 4,872, and the acts done pursuant thereunto, unreasonable and void; but that the requirement that only two tracks be permitted upon the new bridge stand, and that said city and said Eastern Wisconsin Railway & Light Company, and each of their officers, agents, and servants, be enjoined and restrained from interfering with the defendant in, or preventing the defendant from, connecting by cross-over tracks at or near the approaches to the bridge its passing track or turnout on Main-street bridge as at present located with its main track as referred to in the contract of December, 1904, until after the Eastern Wisconsin Railway '& Light Company has acquired by purchase or condemnation the right to use the east trade on said bridge. The Eastern Wisconsin Railway & Light Company should be enjoined and restrained from attempting — 487 — to cross on said bridge before acquiring the right to do so by purchase or condemnation. We do not think that the Winnebago Traction Company is entitled to any other relief demanded, except that the Basteni Wisconsin Railway '& Light Company should be restrained from interfering or meddling ■with or running over or upon any other passing track of the Winnebago Traction Company until after it acquires the right to dq so by purchase or condemnation. The status quo ■ should be preserved, and the Winnebago Traction Company should not change the present location of its tracks in South Main street, nor should it be required to change such present location of any part of its tracks in Main street north of the bridge for the convenience or accommodation of the Eastern Wisconsin Railway '& Light Company without compensation by that company, the amount thereof to be arrived at by agreement or condemnation proceedings. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to enter'a decree in accordance with this opinion.